TaxTMI 
TaxTMI 
2024 (8) TMI 1689
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....- Total 42,28,764/- 2. 9793 dated 11.09.2009 Car parking space no. 12 in Apartment, 75 Bondel Road, Kolkata - 700 019 Parking Space No. 12 Value 50,000/- Stamp Duty 17,309/- Registration3,266/- Total 70,575/- 2. As per the facts of the case, charge-sheet No. 05/2011 dated 10.08.2011 of Central Bureau of Investigation, SPE, AHD, Ranchi was filed u/s. 173 of the Cr.P.C., before the Hon'ble Special Judge, CBI, Ranchi for commission of offences punishable u/s. 120B, 420, 467, 468, 471 of the IPC, 1860 and section 13(1)(c), 13(1)(d) r.w. 13(2) of the Prevention of Corruption Act, 1988; Charge-sheet No. 06/2011 dated 05.09.2011 of Central Bureau of Investigation, SPE, AHD, Ranchi is filed u/s. 173 of the Cr.P.C. before the Hon'ble Special Judge, CBI, Ranchi, for commission of offences punishable u/s. 120B, 420, 477A of the IPC, 1860 and section 13(2), r.w. 13(1)(d) of the Prevention of Corruption Act, 1988; Charge-sheet No.12/2013 dated 31.08.2013 of Central Bureau of Investigation, ACB, Ranchi is filed u/s 173 of the Cr.P.C. before the Hon'ble Special Judge, CBI, Ranchi, for commission of offences punishable u/s. 13(2) r.w. 13(1)(e) of the Prevention of Corruptio....
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.... entered into criminal conspiracy with Dr. Vijay Shankar Narayan Singh, Shri Madan Mohan Prasad, Shri Pradyut Mukherjee and also with Shri Rajesh Kumar Fogla and in pursuance of the conspiracy, they, by abusing their respective official positions, dishonestly and fraudulently cheated the Government of India and State Government by awarding the tender for purchase of sanitary napkins at exorbitant rates in favour of M/s Nand Kishore Fogla. The omission and commission on the part of the above officials caused wrongful loss to the tune of Rs. 2,88,52,506.25/- and corresponding wrongful gain to themselves and others. Dr. Pradeep received illegal gratification amount to Rs. 4,85,00,000/- from M/s. Nand Kishore Fogla in five instalments. This is proved by the confessional statements of Rajesh Kumar Fogla,S/o Shri Nand Kishore Fogla, the proprietor of M/s Nand Kishore Fogla, recorded as an accused u/s. 164 Cr.P.C. by the Magistrate I-Class. The amount of pay off was routed through Shyamal Chakraborty. The confessional statement of Shri Rajesh Kumar Fogla stands corroborated by Shri Vikash Khetan (who too made his statement u/s. 164 Cr.P.C.) as an accused. Vide charge-sheet No. 12/20....
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....ing para:- From the Audit Report and ITR submitted by Shyamal Chakravarty, it can be seen that sale of flats by M/s Essar Enterprises was done and profit made only in the FY 2009-10. Hence, there was no income to this firm prior to FY 2009-10. Against no profit prior to FY 2009-10, both the partners Rajendra Kumar and Shyamal Chakravarty were withdrawing money from the partnership business. From the Audit Report for the FY 2009-10, it is also apparent that their initial invested Capital remained intact, till the dissolution of the partnership firm in September, 2010. This leads to the conclusion that amount credited from M/s Essar Enterprises is unaccounted and from the illicit sources, as the amount was generated without any actual investment and/or earning by said partnership firm in the business of construction. Investigation revealed that in the sale deed No. 9786 dated 31.08.2009 vide which the property has been purchased, Shri Arun Kumar Agarwal is the seller. Rajendra Kumar, vide his letter dated Nil, which has been received by ED on 13.10.2015, he has himself declared that following loans were taken by Nand Lal HUF for purchase of this Flat: i) Loan taken from M/s Pathak....
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.... immovable property in the name of M/s Nand Lal in partnership with Shri Shyamal Chakravarty was purchased in FY 2009-10 for about 43 lakhs in Kolkata. Shri Shyamal Chakravarty during his statement recorded u/s. 50 of PMLA on 21.08.2015, 25.08.2015 & 11.01.2018, stated that- (a) He was associated with Rhea Enterprises, Rhea Marketing Pvt. Ltd. & Essar Enterprises. In Essar Enterprises, Rajendra Kumar, brother of Dr. Pradeep Kumar is the partner; (b) He knew Rajendra Kumar (main accused) as brother of Dr. Pradeep Kumar. During his visits to the residence of Dr. Pradeep Kumar, he got acquainted with Rajendra Kumar; (c) Dr. Pradeep Kumar is known to him because of official dealings. He had done various contract work, when he was D.C. Ranchi and posted as Secretary, Health. Being a contractor, he often visits his residence. Dr. Pradeep Kumar, in his statement dated 30.05.2016, stated that he knows Shri Shyamal Chakravarty as friend of his brother, Rajendra Kumar and on the advice of his brother, the power of attorney was given to Shyamal Chakravarty. It is apparent that statement of Dr. Pradeep Kumar and Shri Shyamal Chakravarty are contradictory. Both ....
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....r. Rajendra Kumar invested Rs. 14.90 lacs in the aforesaid firm for which he had taken loan from Dharmendra Kumar Dheeraj. Eight flats were constructed in the name of Shailja Apartment. The partnership was dissolved in the year 2010 in accordance with the dissolution deed. In order to prove the source of purchase of property under attachment, he submitted that the said property was purchased vide two demand drafts viz. Demand Draft dated 13th July, 2009 for Rs. 8,50,000 and Rs. 9,00,000. The DDs were created by way of debit from bank account number 30167253801 (Current Account) in the name of M/s Rhea Enterprises held with SBI, Harmu Housing Colony Branch, Ranchi. At that time, Shyamal Chakravarty was the sole proprietor of Rhea Enterprises. Total funds received from Govt. Department in the period 03.07.2009 to 10.07.2009 in account number 0167253801 (Current Account) in the name of M/s Rhea Enterprises held with SBI, Harmu Housing Colony Branch is Rs. 75,97,784/. Out of which Rs. 66,73,542.00 was from the Govt Civil Work. From the above funds Two Demand Draft of Rs. 8,50,000 and Rs. 9,00,000 dtd. 13.07.2009 were made. He further submitted that DD no. 071167 dated 29.08.2009 ....
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....6,851/-, Total Rs. 33,86,889/-. The said amount was paid to Rajendra Kumar from the bank account of M/s Rhea Enterprises in the following manner: Cheque No. Date Amount (Rs.) Debited account No. 884602 09.03.2011 15,00,000.00 31649126039 (current account) 348928 17.03.2011 18,73,204.00 31114155978 C.C A/c 13,685 TDS Total 33,86,889.00 In order to explain the source for making payments of Rs. 2.40 lakhs to Rajendra Kumar, Ld. Counsel for appellant submitted that Shailaja Apartment was launched in the year 2006-07. Thereafter, advance for booking of flats were received by prospective buyers by cheques.The said cheques, received against advance booking of flats, were credited in the bank account number 490120100300167 in the name of Essar Enterprises held with Extension Counter of Bank of India Vikash Bhawan, Ratu Road branch Ranchi. Credits received in bank account number 49012000300167 of M/s Essar enterprises were utilized to make credit of Rs. 2.40 lakhs to Rajendra Kumar. In order to explain the source for making payments of Rs. 33.73 lakhs to Rajendra Kumar, Ld. Counsel for appellant pointed....
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....lso supported by 26AS (Statement in which TDS deducted by which Govt. department is shown). Being himself an Income Tax Officer, the IO of the case was duty bound to go through the documents filed by the appellant. He contended that the appellant has produced his audited balance sheet of income tax for the relevant period, but neither the IO, nor the Ld. Adjudicating Officer, or any other officer of the department for that matter, bothered to look into the said document, which are self-speaking and could have provided all the answers of the questions which are subject matter before this Appellate Tribunal. He submitted that the monies advanced by M/s Rhea Enterprises a firm of appellant involved in Govt. Civil Construction and supply of goods who is not proceeded against in the attachment order or in the OC, hence it could not be imagined that the monies given by such entity to any person including Appellant Shyamal Chakravarty or Shri Rajendra Kumar are emanating from any activity relating to any "scheduled offence", hence such monies could not be "proceed of crime" and therefore, the instant proceedings under PMLA are void ab initio. Accordingly, he contended that the impugned....
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....ens rea or culpable knowledge of the scheduled offence and proceeds of crime derived therefrom and projection of such proceeds of crime as untainted. He also relied upon the judgment of Hon'ble High Court of Delhi in the case of Himachal Emta Power Ltd. VS. Union of India, MANU/DE/ 3183/2018 wherein, it has held that- Investments made by ventures for subscription of shares in other companies cannot by any stretch of imagination be held to be proceeds of crime. The court in Para 18 states that when no material whatsoever can be produced based on which it can be concluded that the investments made are 'derived or obtained' as a result of criminal activity relating to a scheduled offence then the said investment cannot be held to be 'proceeds of crime'. Further, in Para 19 the Hon'ble Court records that the assumption that any amount used in commission of a scheduled offence would fall within the expression 'proceeds of crime' as defined under section 2(1)(u) of PMLA is fundamentally flawed. Further, the court records that in the event that the mining of the coal block never commenced, it cannot be construed that HEPL derived or obtained any benefit ....
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....uirement, under Section 8(1) PMLA, to communicate to the noticee the reason to believe. On a collective reading of Section 5(1) PMLA Section 8(1) PMLA, such an interpretation and is contraindicated and cannot satisfy the requirement of what the AA is supposed to do under Section 8(2) PMLA, viz. to consider the reply of the noticee, give them and the Director a hearing and 'take into account' all relevant materials placed on record. Although at the stage of issuance of notice under Section 8(1) PMLA all the relevant material on record which constituted the basis for reasons to believe may not be made available, if the noticee demands to see those materials on record, the AA is bound to make available all those materials on record to them. It is most likely that without such access to such material on record, the noticee will be unable to file an effective reply. Therefore, there cannot be any denial of access to the noticee of the materials on record. If there is any sensitive material, it can probably be redacted before issuing copies thereof, after noting the reasons for such redaction in writing in the file. But even such redacted material will have to be neverth....
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....e for creation of IVPs and KVPs which formed the basis for formation of Nand Lal HUF. This shows that proceeds of crime generated by Dr. Pradeep Kumar were invested in Nand Lal HUF which was formed on the advice of his Chartered Accountant Naresh Kejriwal for the only purpose of concealment and layering of proceeds of crime, so that tainted property could be projected as untainted. He pointed out that statement of Shri Rajendra Kumar, wherein he stated that he took loan from Sitaram Pathak and Inderlal Kejriwal for acquisition of immovable property, but he could not produce any loan agreement and he does not know these persons individually. Moreover, all the payment for acquisition of this immovable property had already been done much prior to receipt of the loans. These loans have not been reflected in the books of account. Both Sitaram Pathak and Inderlal Kejriwal transferred the amount to the bank account of Rajendra Kumar on the advice of CA Naresh Kejriwal. This makes evident that Dr. Pradeep Kumar has invested proceeds of crime for acquisition of immovable properties and Sitaram Pathak and Inderlal Kejriwal have entered into mala-fide transactions with Rajendra Kumar without ....
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....is firm. Neither Rajendra Kumar, nor Dharmendra Kumar Dhiraj offered any explanation for this transaction. This makes it evident that proceeds of crime were layered through the bank account of this firm by Dharmendra Kumar Dhiraj for acquisition of immovable property to project the tainted property as untainted. He argued that Shyamal Chakravarty was partner of Rajendra Kumar in M/s Essar Enterprises, he was granted General Power of Attorney by Dr. Pradeep Kumar for purchase of property at Udaipur. Shyamal Chakravarty arranged the deal in respect of this transaction. Moreover, for repayment of transferred amount to the firms owned by Sitaram Pathak and Inderlal Kejriwal, the money was credited to the account of Nand Lal HUF from M/s Rhea Enterprises which is controlled by Shyamal Chakravarty. As per statements of Rajesh Kumar Fogla u/s. 164 Cr. PC by the Magistrate I- Class, which was also corroborated by Shri Vikash Khetan (who too made his statement u/s. 164 of Cr.PC) as an accused, Shyamal Chakravarty used to receive the bribe money for Dr. Pradeep Kumar. Thus, it is evident that Shyamal Chakravarty has knowingly parked and concealed the proceeds of crime acquired by Dr. P....
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....nt under section 50 of PMLA, stated that he is not aware of the details of property in Kolkata, its price and the exact source of its acquisition. He stated that a loan of approx. Rs. 20 lakhs were taken from Pathak & Co, about which he did not know much. The details of loan and its repayment status is also not known to him. He stated that money was arranged by his brother Dr. Pradeep Kumar's Chartered Accountant Shri Naresh Kejriwal. Further, this loan has not been reflected in the ITR of Nand Lal HUF. He pointed out that both the abovementioned properties were purchased jointly in the name of Shri Shyamal Chakravarty and Nand Lal HUF, but the payments were arranged by only Nand Lal HUF and Rajendra Kumar. Shri Sitaram Pathak, vide his statement dated 24.04.2015, recorded under section 50 of the PMLA, has stated that he did not even know Dr. Pradeep Kumar and Rajendra Kumar. His Chartered Accountant namely Shri Naresh Kumar Kejriwal asked him to transfer the amount of Rs. 20 lakhs in the name of Nand Lal HUF, which was done without any loan agreement. Thus, huge money was transferred without knowing the lender and without any loan agreement. Further, repayment of loan was d....
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....e consideration) vide two demand drafts of Rs. 8,50,000/- and 9,00,000/- dated 13.07.2009 towards sale consideration is contradictory to the facts mentioned in agreement to sale dated 03.08.2009 and the dubious transactions between the parties for layering the laundered proceeds of crime generated by Dr. Pradeep Kumar is not ruled out. The investigation conducted by respondent ED revealed that Dr. Pradeep Kumar formed Nand Lal HUF, with the help of his brother Rajendra Kumar, on the advice of Naresh Kejriwal to launder the proceeds of crime. When he was interrogated by ED regarding Nand Lal HUF, then Rajendra Kumar, expressed ignorance about the constitution of said HUF and its beneficiaries. Rajendra Kumar was not aware of the details like "location, owner of the property, mode of payment etc", which is attached by respondent ED. All these transactions have happened with the help of appellant Shyamal Chakravarty who used to layer the proceeds of crime generated by Dr. Pradeep Kumar. Appellant Shyamal Chakravarty has played the central role, at the instance of Dr. Pradeep Kumar, and has knowingly concealed and assisted Dr. Pradeep Kumar in laundering the proceeds of crime. Durin....
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....rom Dharmendra Kumar Dhiraj in his ITR from flat at Jascon Plaza. Against his claim of flat being leased or rented, they continue to mention the same flat as residential, as well as business address in different documents. Against income from other sources and business income mentioned in the ITRs of Nand Lal HUF, Rajendra Kumar(karta) could not produce any evidence to substantiate this claim, but the present appellant tried to explain the income of Rajendra Kumar, which is a calculated move to explain the same and layer the proceeds of crime. Accordingly, we are of the view that there is no income from genuine sources and ITRs have been fabricated by Dr. Pradeep Kumar and his brother Rajendra Kumar to conceal the proceeds of crime and to frustrate the proceedings under PMLA. There is nothing to doubt the contention of respondent ED that Dharmendra Kumar Dhiraj has knowingly assisted Dr. Pradeep Kumar in making false claim of rental income and thus, has knowingly assisted in concealment of proceeds of crime. Huge cash was deposited in the account of AHC Pvt. Ltd. and Jascon Enterbuild, Joint Venture, a firm owned by Dharmendra Kumar Dhiraj and the same was clearly used for acqui....
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....ted that he did not know the beneficiary of Nand Lal HUF. He is unaware of basic details regarding this HUF. This shows that he has been made a dummy Karta of this HUF, so that proceeds of crime generated by Dr. Pradeep Kumar could be laundered through this HUF and projected as untainted. Further, Rajendra Kumar, during statement u/s. 50 of PMLA, stated that he is not aware of the details of property in Kolkata, its price and the exact source of its acquisition. As per his version a loan of approx. Rs. 20 lakhs were taken from Pathak & Co, about which he did not know much. The details of loan and its repayment status is also not known to him. The said money was arranged by his brother Dr. Pradeep Kumar's Chartered Accountant Shri Naresh Kejriwal. Further, this loan has not been reflected in the ITR of Nand Lal HUF. Shri Sitaram Pathak, in his statement dated 24.04.2015, recorded u/s. 50 of the PMLA, has stated that he did not even know Dr. Pradeep Kumar and Rajendra Kumar. Chartered Accountant Shri Naresh Kumar Kejriwal asked him to transfer the amount of Rs. 20 lakhs in the name of Nand Lal HUF, which was done without any loan agreement and without knowing the lender. He ad....